ANATH BANDHU DE Vs. KRISHNA LAL DAS

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff and it arises out of a suit for declaration of title, permanent injunction and for accounts.

(2.) The case of the plaintiff was that one Nayan Chand Nandi installed the deity Sree Sree Gopinath Jew Thakur at 5A, 5B and 5C, Ratan Babu Road, Cossipore, more than a century ago. His son Mathura Mohan dedicated the Ka schedule properties to the deity. The Kha schedule properties were acquired out of the income of Ka schedule properties. By an Arpannama executed by Mathura Mohan in or about Ashar 1229 B.S., he appointed his widow Rashmoni and his brother's widow Jagadiswari as joint shebaits of the deity. The Arpannama is not however, traceable. After the death of Jagadiswari, the shebaitship of the deity devolved upon Rashmoni who acted as the sole shebait upto about 1859. By a will dated October 21, 1859, Rashmoni appointed her relation Sristidhar as the shebait of the deity. Sristidhar, by a will, which was probated, created a line of succession to the office of the shebait. He appointed his four sons, namely, Harinarayan, Haripada, Haribhusan and Harimohan as the successive shebaits and it was directed that after their deaths the eldest for the time being amongst his grandsons, great grandsons and lineal male descendents would be the shebaits of the deity. As per the direction in the will of Sristidhar, Harinarayan, the father of the plaintiff, became the shebait.

(3.) It appears that there was some dispute amongst the sons of Sristidhar about the shebaitship of the deity. Haribhusan and Harimohan, the father of the defendant no. 1, instituted a suit being Title Suit No. 89 of 1918 which was re-numbered as Title Suit No. 1 of 1927, in the Court of the Second Additional Subordinate Judge, Alipore, against Harinarayan and Sm. Manjusree Dasi, the widow of Haripada, relating to the shebaitship of the deity. That suit was eventually compromised between the parties and a compromise decree was passed on March 2, 1928. It was inter alia directed in the said compromise decree that the parties would be bound by the terms and conditions as mentioned in the will dated Magh 29, 1310 B.S. of the late Sristidhar Dey including the direction for appointment of successive shebaits. Further, it was directed that in accordance with the terms of the said will, the defendant no. 1 Harinarayan would continue as the shebait and on his death or relinquishment of the office of shebait, the plaintiff no. 1 Haribhusan Dey and in his absence, the plaintiff no. 2 Harimohan Dey would successively become the shebaits, Harinarayan remained the shebait till September 14, 1928 when he dies and thereafter Haribhuan become the shebait. Haribhusan died on April 18, 1948 and thereafter Harimohan become the shebait. Harimohan died on March 3, 1960, but before his death he appointed his son Krishnalal, the defendant no. 1 as the shebait on February 7, 1955. The contention of the plaintiff was that the appointment of the defendant no. 1 was illegal. It was the plaintiff's case that he was the original shebait of the deity and was entitled to have the custody of the deity and to possess the debutter properties on behalf the deity. Accordingly, the plaintiff filed the said suit for a declaration that he was the lawful shebait of he deity and for permanent injunction and accounts.